CA Unpub Decisions

Defendant Daniel J. Fairchild challenges the trial court’s imposition of an incarceration fee after he entered a negotiated no contest plea and was sentenced to serve four years in state prison. We shall remand the matter to the trial court to prepare an amended minute order and an amended abstract of judgment that clearly sets forth the statutory basis for all fees and fines imposed, including the incarceration fee. In all other respects, the judgment is affirmed.

Plaintiff Wyatt Larsen fell in a city bicycle lane while participating in a group cycling ride organized by Cycle Folsom. He fell while riding third back in a two-column or “two-up” paceline and sued the City of Folsom (the City) for alleged negligent maintenance of the bicycle lane.
The City moved for summary judgment, asserting the affirmative defense of primary assumption of risk and further claiming the pavement irregularity where Larsen fell was a trivial defect for which it had no liability as a matter of law. The trial court ruled Larsen demonstrated no triable issue of material fact and granted the City’s motion for summary judgment.

Defendant James Edward Proctor contends the trial court erred when it refused to suppress evidence of his unlawful drug and weapon possession obtained when officers stopped him for parking his vehicle illegally. He claims the stop was unreasonable because officers mistakenly concluded he was parked illegally.

Annette and Roger Elissagaray filed a lawsuit asserting construction defects in their home. The trial court determined the negligence and declaratory relief claims were time-barred and granted summary judgment for the moving defendants.
Annette now contends (1) the trial court should have considered statements contained in declarations filed by the Elissagarays in opposition to summary judgment; (2) there were triable issues of fact about when the limitations period was triggered; (3) even if the limitations period was triggered, it was equitably tolled; and (4) the builder’s principal is individually liable for negligence.
We will affirm the judgments.

Plaintiffs Andrew D. and Cynthia L. MacRitchie appeal from a judgment dismissing their first amended complaint after the trial court sustained a demurrer by defendants Wells Fargo Bank, N.A., (Wells Fargo), and Federal Home Loan Mortgage Corporation (FHLMC), joined by Cal-Western Reconveyance Corporation (Cal-Western). Plaintiffs brought suit after the foreclosure sale of their home, alleging causes of action for breach of contract, breach of security instrument, declaratory relief, negligent misrepresentation, and quiet title. Wells Fargo was the loan servicer, and FHLMC was the purchaser at the foreclosure sale. Cal-Western was the trustee under the deed of trust. Cal-Western filed a petition in bankruptcy, and the appeal was stayed as to it when this court issued its earlier opinion affirming the judgment in favor of Wells Fargo and FHLMC. The court has since been advised that Cal-Western’s bankruptcy stay is no longer in effect. Cal-Western has been given an opportunity to

Cross-defendant and appellant Flavio Rodriguez (appellant) appeals from a November 14, 2016 order vacating a default judgment entered against cross-complainant and respondent Stanley M. Toy, Jr. (respondent) and reinstating respondent’s cross-complaint against him. We affirm the trial court’s order.

An information, filed on November 14, 2013, charged defendant and appellant Phil Nguyen with second degree burglary (Pen. Code, § 459, count one); identity theft (Pen. Code, § 530.5, subd. (a), count two); forgery of a driver’s license (Pen. Code, § 470, subd. (a), count 3); and further alleged that defendant had eight prison priors convictions pursuant to Penal Code section 667.5. The counts were based on defendant’s unauthorized use of another person’s credit card and identification to purchase an iPhone at an Apple Store.

This appeal involves a dispute over attorney fees between the law firm of Shenoi Koes LLP (Shenoi Koes) and a former client, Eileen Foster (Foster). Foster retained Shenoi Koes to represent her during mediation with her former employer, Bank of America, after Foster filed a whistleblower complaint with the United States Department of Labor Occupational Safety and Health Administration (OSHA). The mediation did not result in a settlement, but Foster subsequently entered into a settlement with Bank of America. Shenoi Koes sued Foster, Bank of America, and other defendants for nonpayment of Shenoi Koes’ attorney fee lien. The matter went to arbitration, resulting in a decision in Foster’s favor. Shenoi Koes appeals from the trial court’s order denying its motion to vacate the arbitration award and granting Foster’s petition to confirm the award. We affirm the judgment.

Appellant Warner Livingston challenges the trial court’s order denying his petition for recall of his sentence pursuant to section 1170.126 (Proposition 36). The trial court found that he was ineligible for resentencing on his conviction of evading the police because he was armed during the commission of that offense. (See Pen. Code, §§ 1170.126, subd. (e)(2), 667, subd. (e)(2)(C)(iii).) Appellant argues that insufficient evidence supported the court’s finding that he was armed. We disagree and affirm as to his evading conviction, but reverse and remand for the trial court to reconsider its order on the application of Proposition 36 to appellant’s conviction for false imprisonment.

Stephen Moore pled no contest to three counts of sale or transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a) ) and one count of possession for sale of a controlled substance (§ 11378).
The trial court offered Moore two sentencing choices: incarceration for two years or formal probation for five years with one year in a residential treatment program with a six year eight month suspended sentence. Moore chose the probation option.

Cornell Aaron Brown appeals the judgment entered following a jury trial in which he was convicted of first degree residential burglary. (Pen. Code, § 459.) Appellant admitted two prison priors under section 667.5, subdivision (b) and a prior serious felony conviction under section 667, subdivision (a)(1) and the Three Strikes law. (§§ 667, subds. (b)–(i), 1170.12, subds. (b)–(d).) The trial court denied a defense Romero motion and imposed an aggregate sentence of nine years in state prison. Appellant contends the trial court erroneously instructed on first degree burglary by modifying CALCRIM No. 1701 and abused its discretion in denying appellant’s Romero motion. We disagree and affirm.

A jury convicted Daniel Jaime Ward (Ward) of two counts of unauthorized use of personal identifying information of another person, in violation of Penal Code section 530.5, subdivision (a), and one count of forgery in violation of Penal Code section 470, subdivision (d). On appeal Ward challenges only the two unauthorized use of personal information convictions, contending that “attempting to cash a washed check does not constitute identity theft.” Alternatively, Ward contends that one of the two convictions must be vacated because both are part of a single transaction which, under the law, can support only one conviction. We agree that one of the two convictions must be vacated, but otherwise affirm.

Richard Montano appeals from an order denying his petition to recall his sentence under the Three Strikes Reform Act of 2012, added by Proposition 36. (Pen. Code, § 1170.126.) He contends the trial court erred in finding he was armed with a deadly weapon during the commission of his current offense and therefore ineligible for resentencing. Based on our review of the record of the current conviction before us, we reject his contention and affirm the order.

Appellant Jason Christopher Duchan (appellant) appeals from an order dismissing two of his claims, and portions of his remaining claims, against Los Angeles Unified School District (LAUSD), pursuant to Code of Civil Procedure section 425.16, subd. (a) (“section 425.16” or “anti-SLAPP statute”). We find no error in the trial court’s ruling, and therefore affirm the order.